Nat'l Ass'n for the Advancement of Colored People v. Bureau of the Census

• Decision Date: 19 December 2019
• Docket Number: No. 19-1863,19-1863
• Citation: 945 F.3d 183
• Parties: NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE; Prince George’s County, Maryland; Prince George’s County Maryland NAACP Branch; Robert E. Ross ; H. Elizabeth Johnson, Plaintiffs - Appellants, v. BUREAU OF THE CENSUS; Steven Dillingham, Acting Director, Bureau of the Census; Wilbur Ross, Secretary of Commerce; the United States, Defendants - Appellees, and Donald J. Trump, President of the United States Defendant.
• Court: U.S. Court of Appeals — Fourth Circuit

945 F.3d 183

NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE; Prince George’s County, Maryland; Prince George’s County Maryland NAACP Branch; Robert E. Ross ; H. Elizabeth Johnson, Plaintiffs - Appellants,

v. BUREAU OF THE CENSUS; Steven Dillingham, Acting Director, Bureau of the Census; Wilbur Ross, Secretary of Commerce; the United States, Defendants - Appellees,andDonald J. Trump, President of the United States Defendant.

No. 19-1863

United States Court of Appeals, Fourth Circuit.

Argued: October 30, 2019

Decided: December 19, 2019

ARGUED: Rachel Brown, YALE SCHOOL OF LAW, New Haven, Connecticut; Jessica Ring Amunson, JENNER & BLOCK, LLP, Washington, D.C., for Appellants. Thais-Lyn Trayer, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellees. ON BRIEF: Michael J. Wishnie, Renee Burbank, Nikita Lalwani, Joshua Zoffer, Daniel Ki, Peter Gruber Rule of Law Clinic, YALE LAW SCHOOL, New Haven, Connecticut; Susan J. Kohlmann, Jeremy M. Creelan, Michael W. Ross, Jacob D. Alderdice, Logan J. Gowdey, JENNER & BLOCK LLP, New York, New York; Anson C. Asaka, NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE, INC., Baltimore, Maryland, for Appellants. Joseph H. Hunt, Assistant Attorney General, Mark B. Stern, Civil Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C.; Robert K. Hur, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellees.

Before GREGORY, Chief Judge, and KEENAN and RICHARDSON, Circuit Judges.

Affirmed in part, reversed in part, and remanded by published opinion. Judge Keenan wrote the opinion, in which Chief Judge Gregory and Judge Richardson joined.

BARBARA MILANO KEENAN, Circuit Judge:

The Enumeration Clause of the Constitution requires that Congress conduct an "actual Enumeration" of the population every ten years, the results of which are used for the apportionment of Congressional representatives and the allocation of federal funding. U.S. Const. art. I, § 2, cl. 3 ; amend. XIV, § 2. But, despite its paramount importance in our constitutional scheme, no Census ever has counted the population accurately. Wisconsin v. City of New York , 517 U.S. 1, 6, 116 S.Ct. 1091, 134 L.Ed.2d 167 (1996). Instead, it is widely acknowledged that each decennial Census inevitably results in an "undercount" of the American public.

This undercount is not spread uniformly across the population. Id. The Census Bureau long has recognized that the undercount affects African Americans and other "racial and ethnic minority groups to a greater extent than it does whites." Id. And, because the results of the Census directly impact both political representation and the allocation of federal funding, this "differential undercount" has had the effect of disproportionately reducing the amount of political representation and funding that undercounted communities receive. Id.

This appeal addresses a challenge to the "methods and means" that the Census Bureau has adopted for the 2020 Census, and the contention that the 2020 Census will produce an even greater differential undercount. Plaintiffs-Appellants are the National Association for the Advancement of Colored People (NAACP); Prince George’s County, Maryland; Prince George’s County, Maryland, NAACP Branch; Robert E. Ross; and H. Elizabeth Johnson (collectively, the plaintiffs). They represent "hard-to-count" communities that historically have suffered the greatest harms from differential undercounts, and that directly will lose federal funding if, as the plaintiffs assert, the differential undercount increases in 2020. Defendants-Appellees are the Census Bureau and its Director, the Secretary of Commerce, and the United States (collectively, the defendants).

The plaintiffs’ claims, brought under both the Enumeration Clause and the Administrative Procedures Act (APA, or Act), 5 U.S.C. §§ 701 et seq. , were dismissed by the district court. The court first dismissed the Enumeration Clause claims, holding that they were unripe and would not be justiciable until after the Census was completed. Separately, the court held that the plaintiffs’ claims under the APA failed to identify any "agency action" within the meaning of the Act, and therefore were not subject to judicial review.

On appeal, the plaintiffs argue that the district court erred in dismissing both sets of claims. According to the plaintiffs, their claims under both the APA and the Enumeration Clause are based on "six discrete decisions" set forth in the Census Bureau’s final plans for the 2020 Census, and each decision directly and imminently will exacerbate the differential undercount of the communities the plaintiffs represent. Thus, the plaintiffs contend that their claims are ripe and are subject to review under both the APA and the Enumeration Clause.

Upon our review, we hold that the plaintiffs’ APA claims, as pleaded, do not satisfy the jurisdictional limitations on judicial review set forth in the APA. Therefore, we affirm the district court’s judgment dismissing those claims.

Nevertheless, mindful of the Supreme Court’s recent guidance affirming judicial review of "both constitutional and statutory challenges to census-related decision-making," Dep’t of Commerce v. New York , ––– U.S. ––––, 139 S. Ct. 2551, 2568, 204 L.Ed.2d 978 (2019), we conclude that the district court erred in dismissing the plaintiffs’ Enumeration Clause claims as unripe, and in precluding the plaintiffs from filing an amended complaint regarding those claims after the defendants’ plans for the 2020 Census became final. Additionally, we decline to address in the first instance the defendants’ alternative arguments for affirming the district court’s judgment. We therefore reverse the district court’s dismissal of the Enumeration Clause claims, and remand that portion of the case to allow the plaintiffs to file an amended complaint setting forth their Enumeration Clause claims.

I.

This appeal arises from a brief but complicated procedural history, throughout which the factual and the legal bases of the plaintiffs’ claims changed significantly. For that reason, we begin by reviewing the proceedings below in some detail.

The plaintiffs filed this suit in March 2018, initially asserting multiple violations of the Enumeration Clause but no claims under the APA. At the time of this initial filing, and at the time of the plaintiffs’ first amended complaint in June 2018, the Census Bureau lacked a permanent director and a deputy director, and openly was cancelling pre-Census activities based on the lack of appropriations from Congress. Against this backdrop, the plaintiffs alleged that the Census Bureau’s lack of funding and staffing, exacerbated by "design flaws" in the defendants’ plans to rely on new technologies for the Census, would lead to a dramatic population undercount. The plaintiffs averred that this undercount disproportionately would impact African Americans and other "hard-to-count" communities, thereby diminishing the political representation and the amount of federal funding that these communities would receive.

The defendants moved to dismiss the plaintiffs’ claims for failure to state a claim and for lack of justiciability. The district court addressed the defendants’ motion by memorandum opinion in January 2019. The court first held that the plaintiffs’ allegations were sufficient to confer standing under the Enumeration Clause, and that judicial review was not barred by the political question doctrine. But, reasoning that judicial review was premature and that the plaintiffs’ alleged injuries could be redressed after the 2020 Census was taken, the court held that the Enumeration Clause claims challenging the "methods and means" of conducting the Census were unripe and dismissed those claims without prejudice. However, the court allowed the Enumeration Clause claim based on underfunding to proceed, identifying that one claim as "ripe" for relief.

Just days after the district court’s decision, the Census Bureau announced that its "Operational Plan" for the 2020 Census was final.¹ The plaintiffs immediately sought leave to amend their complaint (1) to introduce claims under the APA, and (2) to "reinstate" their Enumeration Clause claims based on the methodology set forth in the Operational Plan. The district court granted the plaintiffs leave to introduce claims under the APA but denied leave to replead the other Enumeration Clause claims. Notwithstanding the release of the Operational Plan, the district court determined that Enumeration Clause claims based on the planned "methods and means of conducting the 2020 Census" still were not ripe.

In accordance with the district court’s instructions, the plaintiffs filed a second amended complaint (Complaint) identifying six "irrational design choices" in the Operational Plan. The plaintiffs asked the court to "set aside" each "design choice" under Section 706(2) of the APA. 5 U.S.C. § 706(2). As pleaded, those "choices" were: (1) "a plan to hire an unreasonably small number of enumerators;" (2) "a drastic reduction in the number of Census Bureau field offices;" (3) "cancellation of crucial field tests;" (4) "a decision to replace most in-field address canvassing with in-office address canvassing;" (5) "a decision to make only extremely limited efforts to count inhabitants of housing units that appear vacant or nonexistent based on unreliable administrative records;" and (6) "a significant reduction in the staffing of the Bureau’s partnership program."

The defendants filed a renewed motion to dismiss, seeking dismissal of the APA claims, as well as the remaining Enumeration Clause claim that was based on underfunding. The district court granted the defendants’ motion in its entirety.

The district court dismissed the plaintiffs’ underfunding claim, holding that the claim had been rendered moot by recent Congressional appropriations, and that the plaintiffs lacked standing to challenge the adequacy of those...